Add NBC to the list of broadcasters who can find little, if
any, legal justification for the FCC's regulation of indecent broadcasts.
In comments on the FCC's "egregious" cases variant
on its current enforcement regime, NBC says that broadcasting is neither
uniquely pervasive nor uniquely accessible to children, and, as such, the
Supreme Court's Pacifica Decision (George Carlin's monologue) "no longer
provides a valid basis for a broadcast-specific indecency regime."
It calls on the FCC to initiate a rulemaking proceeding to
consider how, and even whether, it can "develop a constitutionally
sustainable indecency enforcement regime." NBC suggests that will be an
uphill climb, though it says that a process with clear procedural requirements
and sufficient due process, "if adequately explained and scrupulously
enforced," it might just pass muster with the courts, a point CBS also
made in its filing.
That would include more rigorous complaint requirements, i.e.
written descriptions or tapes or an explanation of why it is a violation. It
would also mean adjusting the current indecency safe harbor. The FCC does not
enforce indecency rules between 10 p.m. and 6 a.m. under the theory that those
are the hours when kids would be least likely to be watching. But the
difference between primetime in Central and Mountain Time Zones are 7-10 p.m.,
so that a show that airs on the East Coast at 10-11 p.m. and is thus not
actionable in terms of indecency airs at 9-10 p.m. in those time zones, and is.
"The Commission therefore should consider a program
broadcast after 10 p.m. in the Eastern Time zone to be within the safe harbor
even in the Central and Mountain Time zones where it may be broadcast after 9
p.m.," NBC said.
The commission should also not address each complaint, but
only a pattern of complaints, said NBC, and codify a year deadline in which it
will act on complaints, after which they will be deemed denied or dismissed.
NBC made clear that it was only providing the above as
advice on how best to exercise authority the FCC may not ultimately have.
"These proposals do not address the core questions of
whether, how, and under what authority the Commission can continue to provide
broadcasters with lower levels of First Amendment protections than those
guaranteed all other forms of media," NBC said. "The Commission must
grapple with these questions, and it is far from clear that the Commission
today can adopt or enforce any broadcast-specific indecency regime that will
survive constitutional scrutiny. But these proposals would help alleviate some
of the most egregious of the constitutional infirmities plaguing the
Commission's existing broadcast indecency regime."
NBC joins Fox, which has been most vocal, but also CBS and,
to a lesser extent, the National Association of Broadcasters in calling into
question the underpinnings of indecency enforcement.
Given that most of the population gets its
broadcast media via MVPDs, not over the air, and given the rise of online
video, "the world Pacifica described -- in which viewers depend on
over-the-air broadcast for most or all of the video programming they watch -- looks
nothing like the market today. Today it is consumers, not broadcasters, who
decide what they will watch and when."